Difference between revisions of "Employment Insurance Benefit Entitlement (8:VII)"

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Employment Insurance Benefit Entitlement (8:VII) (view source)

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To date, the only prescribed circumstance under s 29(c)(xiv) is ''EI Regulations'' s 51. This states that leaving employment when the employer is downsizing the business and the claimant’s decision preserves the employment of another worker does constitute just cause.  
To date, the only prescribed circumstance under s 29(c)(xiv) is ''EI Regulations'' s 51. This states that leaving employment when the employer is downsizing the business and the claimant’s decision preserves the employment of another worker does constitute just cause.  


According to cases decided before Bill C-21 (1990) was introduced, and under the old ''Unemployment Insurance Act'', for a claimant to prove just cause, he or she must show:  
For a claimant to prove just cause, he or she must show:  


*a) a genuine grievance, or other acceptable reason for leaving the employment;  
*a) a genuine grievance, or other acceptable reason for leaving the employment;  
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In ''Canada v Hernandez'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse advised him that the silica dust which was a main material in the factory was a carcinogen.  The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.  While this case is an aberration, it shows the importance of being able to prove that the worker did everything possible to avoid quitting.
In ''Canada v Hernandez'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse advised him that the silica dust which was a main material in the factory was a carcinogen.  The court decided he did not exhaust his alternatives because he should have asked the employer to change its business or find him a new job somewhere else.  While this case is an aberration, it shows the importance of being able to prove that the worker did everything possible to avoid quitting.


There are thousands of decisions by the Umpires, SST and Federal Court of Appeal addressing “just cause” issues that may help determine whether just cause existed.  CUB 21681 (23 Sept. 1992) confirms that just cause may result from all of the circumstances together, although no single factor would be sufficient: “When the statute says ‘having regard to all the circumstances’, it imposes a consideration of the totality of the evidence.”  Thus, if the claimant’s reason for leaving is not one of the enumerated factors under s 29 but the claimant feels that they had no reasonable alternative to quitting or that they were fired without committing intentional misconduct, a case could still be made that the totality of the claimant’s circumstances gives rise to just cause.
There are thousands of decisions by the Umpires, SST and Federal Court of Appeal addressing “just cause” issues that may help determine whether just cause existed.  CUB 21681 (23 Sept. 1992) confirms that just cause may result from all of the circumstances together, although no single factor would be sufficient: “When the statute says ‘having regard to all the circumstances’, it imposes a consideration of the totality of the evidence.”  Thus, if the claimant’s reason for leaving is not one of the listed factors under s 29 but the claimant feels that they had no reasonable alternative to quitting or that they were fired without committing intentional misconduct, a case could still be made that the totality of the claimant’s circumstances gives rise to just cause.


==== b) Importance of Evidence ====
==== b) Importance of Evidence ====
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==== a) Determining Misconduct ====
==== a) Determining Misconduct ====


“Misconduct” is not defined in the ''EI Act'', but previous decisions have stated that the word must be given its dictionary meaning. According to ''Black’s Law Dictionary'':
“Misconduct” is not defined in the ''EI Act'', but previous decisions have stated that the word must be given its dictionary meaning.
 
:Misconduct occurs when conduct of employee evinces wilful or wanton disregard of [the] employer’s interest, as in deliberate violations or disregard of standards of behaviour which employer has right to expect of his or her employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.


The Federal Court of Appeal in ''Mishibinijmia v Canada (Attorney General)'', 2007 FCA 36, provided a definition stating: “there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.”
The Federal Court of Appeal in ''Mishibinijmia v Canada (Attorney General)'', 2007 FCA 36, provided a definition stating: “there will be misconduct where the conduct of a claimant was wilful, i.e. in the sense that the acts which led to the dismissal were conscious, deliberate or intentional. Put another way, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility.”
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The alleged misconduct must be the real or the actual and direct cause for the dismissal, not merely an excuse for it.  An employer cannot invoke previously forgotten or forgiven incidents to justify a dismissal.
The alleged misconduct must be the real or the actual and direct cause for the dismissal, not merely an excuse for it.  An employer cannot invoke previously forgotten or forgiven incidents to justify a dismissal.


The onus of establishing a misconduct allegation rests on the party alleging it.  The Commission or employer must prove positively the existence of misconduct and must prove the misconduct caused the loss of employment.  Again, refer to the Umpire decisions for examples of what constitutes misconduct justifying lawful dismissal.
The onus of establishing a misconduct allegation rests on the party alleging it.  The Commission or employer must prove positively the existence of misconduct and must prove the misconduct caused the loss of employment.  Refer to the Umpire decisions for examples of what constitutes misconduct justifying lawful dismissal.


==== b) Dishonesty ====
==== b) Dishonesty ====
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In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana.  As a result of test, the company operating the worksite refused to allow the claimant access to the worksite because in was in violation of a drug and alcohol policy.  The court declined to overturn the disqualification, despite the argument that such illegal but decriminalized conduct - smoking a joint on the previous weekend - could not amount to misconduct for EI purposes.  The case leaves open the question of whether there would have been misconduct if he had tested positive for marijuana, but because of the zero tolerance policy denying him access to the worksite this amounted to misconduct.
In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana.  As a result of test, the company operating the worksite refused to allow the claimant access to the worksite because in was in violation of a drug and alcohol policy.  The court declined to overturn the disqualification, despite the argument that such illegal but decriminalized conduct - smoking a joint on the previous weekend - could not amount to misconduct for EI purposes.  The case leaves open the question of whether there would have been misconduct if he had tested positive for marijuana, but because of the zero tolerance policy denying him access to the worksite this amounted to misconduct.
On the issue of whether an employee testing positive for drugs amounts to misconduct, there is authority that this will be the case if they are in violation of the employers drug policy: see ''Lepretre v Canada (Attorney General)'', 2011 FCA 30.


:'''NOTE:''' '''Determinations of “just cause” and “misconduct” by the Commission can be appealed''' and where disqualification is imposed, a client should be advised to appeal.  Many claimants mistakenly believe that they are automatically disqualified from EI if they have been fired, however unfairly.  Unfortunately, many such claimants do not apply for EI benefits at all, or if disqualified do not realize that they can challenge the Commission’s decision until their 30-day period to appeal expires.
:'''NOTE:''' '''Determinations of “just cause” and “misconduct” by the Commission can be appealed''' and where disqualification is imposed, a client should be advised to appeal.  Many claimants mistakenly believe that they are automatically disqualified from EI if they have been fired, however unfairly.  Unfortunately, many such claimants do not apply for EI benefits at all, or if disqualified do not realize that they can challenge the Commission’s decision until their 30-day period to appeal expires.
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